Papers Please: Poignancy in the Age of State Surveillance

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In the climactic scene of Paul Preciado’s movie Orlando, My Political Biography (2023), the film-maker assembles the numerous actors that have played the title character in the preceding hour and a half, all of whom have undergone some elements of biological and/or legal transition. The group thus assembled brings together in a single timeframe individuals whose lives had seemed sequential – each actor replacing the last, often with an interview direct to camera in which each says their name and then ‘in this film, I will be Virginia Woolf’s Orlando.’ 

At the end of the film, with no Orlando displacing any previous Orlando, and nobody being displaced, temporal sequence is transformed into spatial collage, syntagm into paradigm. It is, in a not-entirely-metaphorical sense, a depiction of heaven. The year, Preciado tells us, is the not-too-distant future (which is to say, impossibly remote), and our Orlandos now sit together. They face the camera but also a bench, from which gazes Virginie Despentes, the theorist, novelist, and film-maker who had been Preciado’s lover – an affair he described in his theory-memoir Testo Junkie as ‘the apex of a sexual career as a conquistador without a cock’. Despentes, a cis feminist, surveils the trans bodies arranged before her, but when she speaks she does so not as a goddess, but as a state functionary: she is there for one purpose only, to notarise and issue passports from an imaginary future in which state boundaries have been dissolved, and the trans people gathered can finally – finally – see names that they recognise as their own, in the documents supplied by a state whose authority is, therefore, at last worthy of the thrall in which it has held them all along. 

In a film so indebted to the discursive practices of utopia, made by a film-maker whose work is justifiably lauded for the vigour and energy of its practices of self-reconstruction, a theatrical dumbshow of state licensure cannot but feel like a startling contraction of scope. Surely trans people want more than a passport – which, in any case, they (we) are already able to obtain in the United States and most of Europe, providing our conformity to other norms of citizenship, most of which are structured by prevailing racial and ethnic norms of white supremacy, norms which Despentes might as well have been cast to depict. 

Yet Despentes is not merely there to represent a state: her body appears onscreen overwhelmed by meaning. She is a cis woman (licensing authority for trans women); a cis feminist (alibi and refuge for trans women); a cis lesbian (licensing authority for trans lesbians); a cis femme (spectacle of erotic potential analogous to a Hollywood starlet); the film-maker’s ex-lover (erotic fixation for the camera); and a famous artist in her own right. Preciado has said while presenting the film that she is there to represent ‘Literature’. In other words, the dramaturgy of state power has been sketched out in order to bring to light a wide range of other desires and needs, whose origins are not found within the state’s domain, but in the bodies of those Preciado has convened to worship at its altar. Accordingly, while receiving fake passports from a beautiful and famous woman pretending to be a just state, the actors weep for joy, for the belated glory of bureaucratic recognition, of celestial institutionalisation. 

We might call this moment ‘poignant’. If we did, we would be imagining that although no actual passport is issued at the end of the film, something is licensed, something is recognisable, formalisable, and publicly visible; something happens. Since Preciado was a student of Jacques Derrida at the École des Hautes Études en Sciences Sociale, the moment recalls Derrida’s critique of the concept of ‘felicity’ in the speech act theory of J L Austin. For Austin, performative utterances, of which the typifying examples were often drawn from the speech of state representatives, such as the priest or functionary who ‘pronounces’ the certification of a marriage, could be examined in relation to their felicity, rather than any intrinsic force they may possess: the difference between a licensed functionary offering such a pronouncement, and a French film-maker saying the same words, is only contextual. 

In one of his most cited essays, ‘Signature Event Context’, Derrida pointed out the oddity of Austin’s location of ‘infelicitous’, which is to say inefficacious, speech acts, tracing moments where Austin both treats infelicity as an intrinsic risk of all speech acts (Derrida quotes Austin, ‘features of this sort can and do constantly obtrude into any case we are discussing’), and as an exterior, parasitic contingency radically extrinsic to the act itself (to again quote Derrida quoting Austin, ‘Language in such circumstances is in special ways – intelligibly – used not seriously [Derrida’s emphasis], but in many ways parasitic on its normal use – ways which fall under the doctrine of the etiolations of language. All this we are excluding’).

As the cascading parentheses, brackets, and quotation marks of my own previous sentence illustrate all too well, context and speech act are not always easy to separate. Accordingly, Derrida suggests, one of the effects of performative speech may be to construct or deform its own context – by which logic, principles of licensure are therefore implicitly or explicitly deducible from the context the act creates. If the climactic scene of Preciado’s Orlando is poignant, in other words, it is partly so not because (or not only because) it fulfills a fantasy of state recognition, but also because it convenes a state itself, reconfiguring as a political entity the group of individuals, who may be connected by the claim that they ‘are’ ‘trans’ in some sense, but who clearly do not share a sense of what that might mean, or why it might be desirable. In that case, the analogue among women’s novels of the first half of the twentieth century would not be Woolf’s Orlando (1928), but a book published six years later: Agatha Christie’s Murder on the Orient Express (1934), whose plot depends upon the capacity of twelve individuals, thrown together by shared trauma, to act as a state in the administration of justice. 

The licensure of state papers is, at first glance, a decidedly unsentimental matter. Yet we’re funny about it, too. Those acquiring US citizenship in Oakland, California during the years 2017-20, for example, were given the option of declining the conventional photograph next to the bench from which pronouncement was delivered – a concession made on the grounds that the face beaming benevolently from just above that bench had referred in no uncertain terms to those acquiring citizenship as ‘rapists’ while campaigning for the role. Instead, a life-size cardboard figure of the previous President was placed on the street outside the Paramount Theater downtown, which was subject to venerations of many kinds – rage, adoration, terror. 

To respond to such scenes as that, or as the final sequence of Orlando, My Political Biography, as though they were merely an expression of false consciousness or, worse, an emerging form of minority nationalism, would seem to require of those terrorised in the name of the nation state that they be forced to adopt an entirely naïve relation to it, a negation so uncompromised as to be essentially uninhabitable. The promises of national belonging, as Lauren Berlant explores so brilliantly in The Queen of America Goes to Washington City, may seem especially charged to those whose being is excluded by definition from the rubrics of citizenship. A striking aspect of the two-and-a-half decades since Berlant first published that book, however, has been the divergence of gay and trans models of citizenship, with the effect that, in terms unthinkable in 1997, those models seem strangely at odds. 

Marxist queers and trans people have been consistently skeptical that the liberal regime of civil rights will secure the freedoms of those whose lives and bodies are dominated on the basis of theories of sexuality or sexuation, especially in those cases where the lives and bodies are not governed by the protective authority of white racialisation. In her essay ‘The Limits of Trans Liberalism’, Nat Raha explores the material inequities between trans and cis people, which are obscured rather than redressed by the formal equality promised by liberalism: as she notes, 25 per cent of homeless youth in the UK identify as LGBTQ, and the Tory governments of the ‘austerity’ period made dramatic cuts to legal aid. What use are rights that one cannot defend with legal representation? Conversely, Raha argues, 

While many trans people remain in low-paid and precarious work, white-collar trans liberalism will enable the success of those trans lives deemed acceptable to an expanding multicultural society, in which businesses understand diversity as good practice and trans subjects as highly productive workers.

Nonetheless, it is worth pausing a moment on the different fortunes of gay and trans liberalisms in the past three decades. The project of gay liberalism has been largely successful in Western Europe and the United States. That strategy has sought to establish an irresistible interior subjectivity (‘born this way’) as the basis for enumerated civil rights, whose political telos is formal equality (‘love is love’; ‘marriage equality’). To follow the American example: in 1996, Bill Clinton passed the Defense of Marriage Act (DOMA); in 2003, the Supreme Court decision in Lawrence v Texas effectively overturned anti-sodomy laws nationwide; in 2008, Barack Obama ran for President on a promise to repeal DOMA; in 2013, it was overturned by the Supreme Court, in a decision written by Anthony Kennedy, a Reagan appointee. 

At the time of writing, the Human Rights Campaign (HRC), the United States’ most prominent advocacy group for gay liberalism, is not advocating for any legal reform whatsoever, merely for vigilance against the introduction of new ‘anti-LGBTQ’ laws, most of which are in reality directed primarily at trans people. Trans liberalism has had a wobblier time. The same theory of subjectivity has been established (‘born this way’), but of a less generalisable formal type: both homosexual and heterosexual people can persuade themselves they have a ‘sexuality’ – an irresistible, non-situational (which is to say transcendental) erotic object choice – but while trans people may assert the primacy of a ‘gender identity’, cis people rarely do. Accordingly, the slogans for trans formal equality have raised as many questions as they have answered: ‘love is love’ seems inoffensive enough, but ‘trans women are women’ is confusing and imprecise. Nor does the grammar resolve the difficulty: Highland terriers are terriers, but German shepherds are not shepherds. 

One reason why it now seems possible for media representations of transition to depict the phenomenon as occurring after gay liberalism (rather than long preceding it), is because even laws written supposedly for the benefit of LGBT populations carved out exemptions for trans people. Obama’s repeal in 2010 of the ‘Don’t Ask, Don’t Tell’ policy, against gay inclusion in the United States military, specifically excluded transgender candidates, who remain excluded by law; during Obama’s last year in office, he circulated a ‘Dear Colleagues’ letter asserting that Title IX protections against sexual harassment protected gender identity, but this policy was formally rescinded less than a year later, and has not been reintroduced since. The Supreme Court’s judgment in Bostock v Clayton County, Georgia, however, seems to have upheld the essential elements of the 2016 letter, meaning that the judiciary, generally considered the most conservative branch of the federal government, runs ahead of the executive and legislative branches on the issue of trans civil rights. 

Gay liberal organisations like the HRC and Stonewall in the United Kingdom, meanwhile, have tended to focus on trans civil rights issues relating to state surveillance, documentation, and biopolitical control of bodies; yet this orientation has generated extraordinary resistance among many of the beneficiaries of the liberal movement. Stonewall, in particular, has been castigated across the British liberal media for its re-orientation towards trans issues, and a group of ex-Stonewall activists and executives have founded the LGB Alliance (LGBA) an organisation that has been cited as a ‘hate group’ by most center-left organisations in Britain, including the Trade Union Council. In other words, as the gay liberal movement has ticked off every item on its agenda, the list of unresolved trans civil rights issues has not contracted at all since 1997 – no transition on demand; no national ‘informed consent’ policy on access to hormones; no legal protections for minors seeking transgender care. 

How to understand this stark difference in political fortunes? And how, too, to understand the strange rhetoric of LGBA, which derives its name from an act of excision – the removal of a T – but which understands itself as an organisation resisting change, rather than enacting it. On one level, as Kristin Grogan and I argued in an essay on the decision in Bostock, trans civil rights claims are difficult to articulate within the liberal argumentative framework that the HRC and Stonewall have used to such great effect elsewhere. Legal protections for trans workers and students, for example, are often characterised as ‘speech codes’, and therefore, again, radical impositions into stable social environments, rather than as extensions of already-existing protections against sexual harassment. 

In general, there is very little that trans people have sought in the last three decades that resembles a right to privacy of the kind that underpins the decision in Lawrence, or indeed was asserted so disastrously in Roe. Where anti-anti-sodomy activists asserted the essential dignity of privacy, and were themselves often criticised by especially left-leaning queer critics for doing so, trans civil rights claims often focus, in superficially similar ways, on the deleterious effects of surveillance – at its core, the notion that the state has an insuperable right to apprehend one’s body, invade it by whatever force it deems reasonable, extract from it any evidence it deems serviceable, designate it according to a sexual taxonomy that it has designed itself, and inalienably to direct those it has taxonomised to separate spheres, institutions, and regimes of value. 

To be blunt, neither the American nor British state has ever asserted such aggressively apprehensive powers in respect to sexual conduct as it routinely does in relation to taxonomising the sexed body. The most spectacularly coercive deployment of such powers occurs in the act of incarceration, which has for that reason been the focus of much trans civil rights activism in the prior three decades: the 2015 book Captive Genders: Trans Embodiment and the Prison Industrial Complex, edited by Eric Stanley and Nat Smith, draws together activist narratives and histories on these issues. 

In more modest ways, surveillance of the sexed body occurs in a variety of social settings: every time, for example, one is asked to supply one’s legal name – a designation too often treated as a concession – an implication is made that a refusal to supply such information, in the name of the law, could instigate a series of investigations that could not end any other way than by invasive bodily search. Bodily surveillance does not merely happen in the airport security line, or in the LGB Alliance’s exhortations to vigilance on the threshold of the women’s toilet, but in almost every encounter with paperwork, which is itself an activity so utterly irrepressible that it barely even registers as activity. Trans civil rights activists have often warned against the ‘trap’ of visibility, which is also the trap of celebrity: drawing attention to any of us puts all of us at greater risk. The politics of visibility are especially fraught given their proximity to the question of passing, which is a goal of many but not all transitions, and is partly determined by one’s access to capital, as well as being run through by other inequitable distributions of power intrinsic to the embodiment of, especially, racialised and debilitated conditions. 

All of which is to say that the poignancy of the end of Preciado’s film is quite distinct from the poignancy that one can observe in the archive of gay liberalism: from ‘I Am What I Am’, through Brokeback Mountain, to Glee and beyond. Trans poignancy activates a fictive historical archive, as when Preciado positions himself as the object of a messianism he attributes to Woolf. Not, of course, that trans lives did not exist, or that people did not transition, in the 1920s – given the current wide circulation of Jennie June’s 1918 book Autobiography of an Androgyne, it’s surprising that Preciado so naively reproduces the myth of trans novelty. But in a sense, this is the necessary position of a would-be trans liberal in an age that seems to have scuppered any possibility of trans liberalism. The fantasy that civil rights for trans people are just getting started, and that a decade from now we will be able to have nicer passports, provides a more comforting, if no more realistic, assessment of the present circumstance than recognising that, for well over a century, legal surveillance and biopolitical control of our bodies has been more or less absolute. During the various moments at which liberal rights claims did circulate over that period, they were quickly enjoined by spasmodic escalations of repression, of which arguably the most extreme example has taken place over the last decade. To meet such a moment, we may well need to refresh our aesthetics, as well as our collective sense of histories.

Grace Lavery is a writer and academic from Birmingham, who lives in New York.